Thursday, July 19, 2012

Breaking: Sen. Rand Paul Brings Dormant Blogger Back To Life!

So, yes, if you’ve stopped by lately you’ve noticed
that I’ve been a bad blogger. Between trial work and other assorted upheavals
(insert yada, yada, yada here)
I just haven’t been able to devote much time to this endeavor.

But things have calmed down slightly, and my pal
Bob of The Four Freedoms blog (@BobberDC
on the Twitter Machine) reminded me today that Pauls are gonna Paul.

Meaning, in this case, Sen. Rand Paul’s gonna Paul.

Where “Paul,” as a verb, means “to act like a
loony.”

To-wit: earlier this month, Sen. Paul introduced
something he calls the “One Subject At A Time Act,” S.B. 3359,
which is the handiwork of a right-leaning think tank called Downsize
DC. On its face, S.B. 3359 seems like a reasonable idea. The gist of it is
contained in Section 2, which provides:

(a)
One Subject– Each bill or joint resolution shall embrace no more than one
subject.

(b)
Subject in Title– The subject of a bill or joint resolution shall be clearly
and descriptively expressed in the title.

(c)
Appropriation Bills– An appropriations bill shall not contain any general
legislation or change of existing law provision, the subject of which is not
germane to the subject matter of each such appropriations bill; provided,
however, that this section shall not be construed to prohibit any provision
imposing limitations upon the expenditure of funds so appropriated.

Okay, fair enough. It would be nice if Congress
tackled individual problems directly, addressing the merits of each issue
head-on and without political game-playing. How many times have we seen one
party or the other tack some odious provision onto an otherwise popular bill in
order to make it politically untenable to pass, or to extort some compromise it
could not otherwise get if it had to fight for each separate provision on its
merits?

Exactly.

So it’s a laudable idea to get rid of that sort of
political sleight of hand by forcing Congress to tackle major policy issues
discretely. But Sen. Paul’s “One Subject At A Time Act” goes about in a
predictably simplistic, poorly-thought-out way. Just what you might expect from
a guy who still pines for high-school-debate-team-dream-girl Ayn
Rand.

Specifically, take a look at one of the bill’s
enforcement mechanisms contained in Section 3(e):

(e)
Commencement of an Action– Any person aggrieved by the enforcement of, or
attempt or threat of enforcement of, an Act passed without having complied with
section 2 or this section, or any Member of Congress aggrieved by the failure
of the House of Congress of which that individual is a member to comply with
any requirement of those sections, shall, regardless of the amount in
controversy, have a cause of action under sections 2201 and 2202 of title 28,
United States Code, against the United States to seek appropriate relief,
including an injunction against the enforcement of any law, the passage of
which did not conform to section 2 or this section.

Note what this provision doesn’t say. It doesn’t say it’s limited to non-conforming acts passed subsequent to the adoption of the “One Subject At A Time
Act.” Maybe that’s the intent of the drafters – that one can only sue to enjoin
enforcement of a non-conforming act passed after the effective date of the one-subject law – but that’s not what it
says.

Normally, a bill that intends only to affect
actions subsequent to its enactment will expressly say so. In this case, if the
bill stated that any act of Congress passed after the effective date of this
bill has to comply with the one-subject rule, then the enforcement provision
could, logically, only apply to subsequent bills. But there is no such language
in Sen. Paul’s bill; so even if it was intended to apply only to subsequent
legislation, it’s so inartfully drafted that it’s hard to avoid the reading it
this way: The bill would allow a citizen or a member of Congress to sue to
enjoin any statute currently on the books that does not comply with the
single-subject rule, regardless of
when that statute became law.

Of course, in a lawsuit challenging a
multiple-subject statute enacted prior to the one-subject rule, I suspect the
court would try to parse the language carefully to avoid that result. A judge
could, I suppose, read into the language of Section 3(e) – i.e., “an Act passed without having complied with
Section 2 of this section” – an implied temporal component: Only bills passed
subsequent to the one-subject bill could have been passed in a way that
complies, or fails to comply, with the one-subject bill, so only such a bill
can be challenged under Section 3(e). But on its face, the bill simply does not
say that.

And so, a judge could just as easily read the “One
Subject At A Time Act” to mean what it says. There’s no real ambiguity here: Section
3(e) seems to give people the right to sue to enjoin the enforcement of any act of Congress that doesn’t meet the requirements
of Section 2. And in the absence of ambiguity or uncertainty, a court
ordinarily is not supposed to look beyond the plain language of a statute to
ask what the drafters really
meant.

So
… imagine the resulting chaos. Thousands of lawsuits challenging virtually
every statute now on the books, most of which would be vulnerable under Sen.
Paul’s proposed bill. It’s mind-boggling.

It’s also, of course, an easy problem to fix. Just
revise the language of S.B. 3359 to clarify that it only applies to
subsequently enacted federal laws.

But that assumes you don’t want chaos. When it comes to Sen. Paul and his
fellow Ayn Rand acolytes in Congress, I wouldn’t count on that.